Wednesday, November 28, 2007

There are two great death penalty blogs selected for the ABA's Blawg Poll which I recommend you voting for. The first one is Karl Key's Capital Defense Weekly, the best source for extensive information and analysis of the death penalty court cases and litigation. The second is Grits For Breakfast which posts about everything from Sharon Keller's lynching of Michael Richards to the situation at TYC.

Voting ends Jan. 2. You may vote for as many blawgs as you wish, but you can vote for any particular blawg only once. For a printable list of all 100 blawgs, click here. For profiles of seven lawyers who started the blawg revolution, click here.

Sunday, November 25, 2007

Daniel Andrade introduces some of the art pieces featured at the "Justice for ALL?" art show. The death penalty art show premiered in Austin at Gallery Lombardi from May 6-22, 2006. It was exhibited in Houston at M2 from February 10 - 18,http://deathpenaltyartshow.org

January 5Westley Dodd becomes the first state inmate to be executed in the modernera - 1993 Washington (he's hanged)

January 6George Mercer becomes the first state inmate to be executed in the modernera - 1989 Missouri

January 6Keith Wells becomes the first state inmate to be executed in the modernera - 1994 Idaho

January 11Joseph Shaw becomes 1st state inmate to be executed in modern era - 1985South Carolina.

January 17Anniversary of the resumption of executions in the United States, in 1977.Gary Gilmore was executed by the State of Utah after giving up hisappeals. He had been convicted of the murder of Ben Bushnell and MaxJenson. Visit www.abolition.org for information and activities relating tothis anniversary.

January 22Mark Hopkinson becomes the first state inmate to be executed in the modernera - 1992 Wyoming

February 19Wilford Berry becomes the first state inmate to be executed in the modernera - 1999 Ohio

February 27Tennessee re-legalizes death penalty, post-Furman, 1974.

March 1International Death Penalty Abolition Day. This marks the date whenMichigan became the first English-speaking territory in the world toabolish the death penalty (1847).

March 1The United States Supreme Court declares the execution of juvenileoffenders to be unconstitutional - 2005 Simmons v Roper

March 5Alabama re-legalizes death penalty, post-Furman, 1976.

March 9Steve Judy becomes the first state inmate to be executed in the modern era- 1981 Indiana

March 14Steven Pennell becomes the first state inmate to be executed in the modernera - 1992 Delaware

March 16James Hutchins becomes 1st state inmate to be executed in modern era -1984 North Carolina.

March 23Arkansas re-legalizes death penalty, post-Furman, 1973.

March 28Georgia re-legalizes death penalty, post-Furman, 1973.

April 6Donald Harding becomes the first state inmate to be executed in the modernera - 1992 Arizona

April 19Robert Glen Coe becomes 1st state inmate to be executed in the modern era- 2000 Tennessee.

April 22John Evans becomes 1st state inmate executed in the modern era - 1983Alabama

April 22Robert Harris becomes the first state inmate to be executed in the modernera - 1992 California

April 23Mississippi re-legalizes death penalty, post-Furman, 1974.

May 13Michael Ross becomes the first state inmate to be executed in the modernera - 2005 Connecticut

May 17Oklahoma re-legalizes death penalty, post-Furman, 1973.

May 17John Thanos becomes the first state inmate to be executed in the modernera - 1994 Maryland

May 25John Spenkelink becomes the first state inmate to be executed in modernera - 1979 Florida

June 1North Carolina re-legalizes death penalty, post-Furman, 1977.

June 11Timothy McVeigh becomes the first federal inmate to be executed in themodern era - 2001 (Federal executions occur in Indiana)

June 18John Swindler becomes 1st state inmate to be executed in the modern era -1990 Arkansas

June 20The United States Supreme Court declares the execution of persons withmental retardation to be unconstitutional - 2002 Atkins v Virginia

June 26The United States Supreme Court declares the execution of persons who areinsane to be unconstitutional - 1986 Ford v Wainwright

June 26International Day of Survivors of Torture - includes innocent personsreleased from USA death rows.

June 29 - July 2Annual Fast & Vigil to Abolish the Death Penalty at the U.S. SupremeCourt. Visit www.cuadp.org for details.

June 29Anniversary of the Furman v. Georgia decision in 1972, in which the U.S.Supreme Court found the death penalty to be arbitrary and capricious. Morethan 600 condemned inmates had their death sentences reduced to life. Allstates were required to rewrite their death penalty laws.

July 1Harold McQueen becomes the first state inmate to be executed in the modernera - 1997 Kentucky

July 2Louisiana re-legalizes death penalty, post-Furman, 1973.

July 2South Carolina re-legalizes death penalty, post-Furman, 1974.

July 2Anniversary of the Gregg v. Georgia decision in 1976, which allowed theresumption of executions in the United States.

July 11Elijah Page becomes the first state inmate to be executed in the modernera - 2007 South Dakota

August 10Frank Coppola becomes the first state inmate to be executed in the modernera - 1982 Virginia

September 2Jimmy Lee Gray becomes 1st state inmate to be executed in the modern era -1983 Mississippi.

September 2Harold Otey becomes the first state inmate to be executed in the modernera - 1994 Nebraska

September 6Douglas Wright becomes the first state inmate to be executed in themodern era - 1996 Oregon

September 10Charles Coleman becomes the first state inmate to be executed in themodern era - 1990 Oklahoma.

September 12Charles Walker becomes the first state inmate to be executed in the modernera - 1990 Illinois

October 10World Day Against the Death Penalty, organized by the World CoalitionAgainst the Death Penalty (WCADP). The World Day is the Coalition'sprimary annual campaigning event against the death penalty and consists oflocal actions around the world. For more information, visitwww.worldcoalition.org.

October 13Gary Davis becomes the first state inmate to be executed in the modern era- 1997 Colorado

October 22Jesse Bishop becomes the first state inmate to be executed in the modernera - 1979 Nevada

November 6Terry Clark becomes the first state inmate to be executed in the modernera - 2001 New Mexico

November 20Universal Children's Day (UN). This is a good opportunity to call for theworldwide abolition of the death penalty for juvenile offenders.

December 2

Kenneth Boyd becomes the 1000th US death row inmate to be executed in themodern era - 2005 North Carolina

December 7Anniversiary of the first use of Lethal Injection in the U.S. thatoccurred in Texas (1982); Charles Brooks becomes 1st state inmate to beexecuted in modern era - 1982 Texas.

December 10International Human Rights Day, commemorating the anniversary of theUniversal Declaration of Human Rights. Contact your local AmnestyInternational chapter to get involved, call 800-AMNESTY, or visitwww.amnestyusa.org.

December 14Robert Williams becomes the first state inmate to be executed in themodern era- 1983 Louisiana.

December 15John Smith becomes the state inmate to be executed in the modern era -1983 Georgia

Saturday, November 24, 2007

Thats title of the Texas Monthly's new editorial calling for impeachment of Sharon Keller.http://www.texasmonthly.com/2007-12-01/topica.php

Fellow judge Tom Price said the decision made the Texas court a “national laughingstock.” Well, no one is laughing now. When a man’s life is on the line—to say nothing of the U.S. Constitution—our top criminal judge should behave like one: with prudence, fairness, and a calm hand. It’s time for Keller to go. If the commission doesn’t act quickly, we’ll have to wait until January 2009, when the Legislature—which has the power to oust high judges—reconvenes, or worse, 2012, when Keller is up for reelection. The fact is, we need to do it now. Impeach Sharon Keller.

Saturday, November 17, 2007

Today, the Texas Court of Criminal Appeals stayed open late accepting letters from the public urging Judge Sharon Keller to resign. On Sept 25, Keller closed the court sharply at 5, saying "We close at five", but today the court stayed open for business past 5 accepting letters urging Keller to resign. This shows how arbitrary the decision was on Sept 25 to close exactly at five. The court stayed open past 5 for a few minutes today with no problem, they could have easily stayed open an extra 20 minutes on Sept 25 to accept an appeal from a man set for execution at 6 pm that day. The protest was covered by Fox 7 and KeyeTV. Fort Worth Star-Telegram also has an article.

"Justice does not close at 5 p.m.," said Laura Brady, a protester from Austin. "Judge Keller has got to understand that."

Keller, who has served on the appeals court since 1995 and has been the presiding judge since 2001, has not responded to calls that she be sanctioned by the State Commission on Judicial Conduct. But last week she implemented a policy of allowing after-hours emergency appeals to be filed electronically.

That action came too late to satisfy Scott Cobb, the organizer of the protest that began outside the Texas Supreme Court building.

"We think she abdicated her responsibility as a judge," Cobb said. "She ought to remove herself from office, or the Commission on Judicial Conduct should remove her.

Please take a moment to send an email to Sharon Keller telling her to resign. Your email will also be sent to Governor Perry, members of the Texas Legislature and the other judges on the Texas Court of Criminal Appeals.

Thursday, November 15, 2007

Renny Cushing of MVFHR is reporting that in an historic vote this afternoon, the Third Committee of the United Nations General Assembly passed a resolution calling for a global "moratorium on executions with a view toward abolishing the death penalty".

The vote was 99 in favor, 53 against, and 33 abstentions. The vote came after two days of debate that included the defeat of 14 proposed amendments that would have wrecked the resolution and an effort to put off a vote on the resolution for 5 years.

Congratulations to all the organizations and individuals though out the globe who worked so hard for passage of this resolution. Today's vote is another step forward in the global struggle for human rights and a clear signal that the day will come when we live in a world without the death penalty.

Earlier this week Unites States and other death penalty countries such as Saudi Arabia tried to block the attempt. The Independent has more.

As of last night, the draft resolution had been sponsored by 85 states, including all 27 European Union nations. The United States, which executed 53 people last year, will vote against. So will China, which put 2,790 people to death last year. In fact 91 per cent of all death sentences carried out happen in six countries: China, the US, Pakistan, Sudan, Iraq and Iran, where two men were publicly hanged for murder and robbery yesterday.

Monday, November 12, 2007

Why: Judge Sharon Keller has violated the Judicial Code of Conduct and damaged the integrity of the Texas judiciary. She should resign or be removed from office. On Sept 25, Keller said "We close at 5" and refused to accept an appeal 20 minutes after 5pm from a man set to be executed at 6 pm that day. She did not consult with the duty judge or any other judges on the court before refusing to accept the appeal. Michael Richard was executed on Sept 25, but he would not have been executed that night if Keller had not acted unethically and violated his constitutional rights. Richard was the last person executed in the U.S.before the start of the current de facto moratorium pending the U.S. Supreme Court's decision in the Baze v. Rees case on the constitutionality of lethal injection as a method of execution.

Date: Friday, Nov 16 at 4:45

Schedule:

4:45 pm Start to gather and get in line to deliver letters urging Keller to resign and the copy of the judicial complaint to the Clerk of the Court.5:00 The court closes, but we want to have people standing in line with letters to deliver, so that they are inconvenienced and forced to stay open an extra 20 minutes to serve everyone in line.5:20 Rally with speakers outside on the Court plaza.

Place: Texas Court of Criminal Appeals, 201 West 14th Street (This is the official address. We will meet on the plaza around the corner facing Congress Ave.) Austin, Tx

Action: We will be delivering a copy of a judicial complaint against Sharon Keller signed so far by more than 1300 members of the public.

Sunday, November 11, 2007

The state of New Jersey will be voting in the coming weeks to abolish the death penalty and we are expecting it to pass. I know this because last Friday the New Jersey Assembly speaker, Joe Roberts held a press conference with Sister Helen Prejean announcing his support of the bill. If you happen to watch too much C-Span and news as I do, you'll know that the Speaker never holds a press conference on an issue unless he is sure that he has enough votes to get the bill passed (video here).

"I also want the jury to be able to walk into the Court of Criminal Appeals and see where that phone call came in," Kallinen said. He said the change also allowed him to beef up portions of the suit dealing with judicial immunity, the lawsuit's highest hurdle. Judges are immune from lawsuits dealing with their judicial actions, but can under limited conditions be sued over administrative decisions.

Kallinen said he withdrew the lawsuit Thursday and mailed the new version to the Austin federal court, where he anticipates it will be filed Tuesday.

Atlanta Journal-Constitution has a front page article in their Sunday's paper regarding the case of Troy David. News Week has an article titled, "Injection of Reflection" that discusses the lethal injection debate and the diminishing support for the Death Penalty among those who are involved in the process, such as juries, Judges, wardens, and state governors.

The new reluctance to punish by killing is part of a historical trend. There was a time when death and torture were spectator sports, when crowds flocked to see prisoners drawn and quartered or beheaded. In some parts of the world, flogging and stoning are still public spectacles. But in the 19th century, supposedly "enlightened" states began looking for more-humane ways to serve final justice—to kill people without causing too much suffering to either the victims or their executioners. The authorities tried hanging, firing squads, electrocutions, gas chambers and, more recently, lethal injection. Each method was supposed to be an improvement over the last...

Jurors and prosecutors are steering away from the death penalty because they are both more and less afraid: more apprehensive about killing the innocent and less fearful of crime. Over the past decade, the use of DNA testing on wrongly convicted criminals has overturned prison sentences for at least 200 inmates nationwide (about 15 of them sentenced to death). In 2000, Illinois declared a moratorium on executions after 13 death-row inmates were exonerated. Back in the '80s, when violent crime was surging along with crack-cocaine addiction in cities, Americans demanded retributive justice. But as crime rates fell in the '90s and the first few years of the new century, jurors became more lenient in capital cases.

At the same time, prosecutors began to be wary of seeking the death penalty. A series of court decisions required that more states provide competent lawyers for the criminally accused in death-penalty cases. Better defense lawyers could stall and maneuver, running up the cost to the state of bringing a capital case. The more-clever lawyers have been especially good at introducing "mitigating circumstances" into these cases, arguing that the abuse suffered by the killer as a child helps to explain the horrible crime he or she committed. Since 1982, according to New Jersey Policy Perspective, a think tank, the state has spent more than $250 million on the death penalty, or about $11 million a year—without executing a single prisoner. With legal costs soaring in death cases, states are finding it cheaper to pay for lifetime prison sentences.

“There are many instances … difficulty finding a vein, equipment failing, choking and heaving, the needle becoming lodged, or is pointed in the wrong direction,” Girard said, “definitely (allowing for) the possibility of agony or suffocation during a period of time before death.”

In May, prison officials in Ohio stuck Christopher Newton at least 10 times with needles, delaying his execution more than an hour, as they struggled to place shunts in his arms to administer the fatal doses.

While lethal injection protocol varies by state, the American Veterinary Medicine Association issues and frequently updates a 39-page guideline for euthanasia.

The most encouraged form of euthanasia involves one ingredient: a long-acting anesthetic called sodium pentobarbital.

The animal is given a high dose which pushes them past loss of consciousness into apnea and then into cardiac arrest.

Using an anesthetic assures vets that the animal is completely asleep when its heart stops.

Saturday, November 10, 2007

I'm live blogging from the Campaign to End the Death Penalty's annual convention at the University of Chicago. Currently about 100 people are listening to Barbara Becnel, Stan Tookie William's advocate/editor talking about her struggle to save life of Tookie Williams. Before her Kenneth Foster jr, read an inspirational letter from his son Kenneth Foster. CEDP played a major role in Gov. Rick Perry's commutation of Kenneth Foster's death sentence. Other speakers include Shujaa Graham, Harold C Wilson and several other exonerated death-row inmates from Illinois and Pennsylvania.

Sister Helen Prejean is going to be the Keynote Speaker of the convention tonight. About 500 people are expected to attend it. For more information, registration and directions go to CEDP's website.

The members of the Court of Criminal Appeals who supported instituting e-mail filings should be commended for taking a necessary step to restore the image of Texas jurisprudence. That cleansing process will not be complete until the Commission on Judicial Conduct takes strong action to sanction Judge Keller for her reckless abuse of the legal system and a defendant's rights.

Friday, November 09, 2007

Please join us for a powerful and inspirational weekend that will be filled with stories and insight about how to further our struggle to abolish the death penalty. Registration for the two-day conference is $50. Student and family member registration is $25. Scholarships are available for former prisoners and family members of prisoners.

Thursday, November 08, 2007

Texas Monthly has called on Impeachment Judge Sharon Keller. According to their blog, the editorial will be published in their December issue, which goes to the printer today:

Four hours before convicted murderer Michael Richard was executed by the State of Texas on September 25, his lawyers notified the Court of Criminal Appeals that, because of computer problems, his appeal wouldn’t be filed until fifteen to thirty minutes after 5 p.m.—the hour at which the court’s offices closed. This was no ordinary appeal: That very morning, the U.S. Supreme Court had agreed to review the constitutionality of lethal injection as a method of execution. Still, Sharon Keller, the CCA’s presiding judge, slammed the door shut on Richard’s life. “We close at five,” she said. Keller’s fellow judges publicly expressed their anger at her actions, as did several hundred defense lawyers and judges, who signed complaints filed with the State Commission on Judicial Conduct to discipline her and remove her from the bench. (Responding to the outcry, on November 6 the CCA announced a new “e-mail filing system for urgent pleadings.”)

This is hardly the first time Keller has sacrificed fairness for toughness. In 1998, in her determination to keep convicted rapist Roy Criner in prison, she turned a blind eye to DNA evidence that indicated he hadn’t committed the crime; fellow judge Tom Price said the decision made the Texas court a “national laughingstock.” Well, no one is laughing now. When a man’s life is on the line—to say nothing of the U.S. Constitution—our top criminal judge should behave like one: with prudence, fairness, and a calm hand.

It’s time for Keller to go. If the commission doesn’t act quickly, we’ll have to wait until January 2009, when the Legislature—which has the power to oust high judges—reconvenes, or worse, 2012, when Keller is up for reelection. The fact is, we need to do it now. Impeach Sharon Keller.

Wednesday, November 07, 2007

Washington DC – Today, U.S. Senator Russ Feingold made the following statement on the severe injustices in capital punishment systems nationwide following the Supreme Court’s decision to block an execution in Mississippi, widely seen as an effective halt to executions until the court rules on a case involving the death penalty next year.

“With the Supreme Court issuing yet another stay in a death penalty case this week, it appears likely that states will suspend executions at least temporarily. This de facto moratorium on executions by lethal injection gives us a chance to recognize just how deeply flawed the implementation of capital punishment in this country is. Indeed, the Supreme Court’s stay comes just one day after a call by the American Bar Association for a nationwide moratorium on capital punishment based on its detailed study of state death penalty systems, which found racial disparities, convictions based on bad evidence, grossly inadequate indigent defense systems, and a host of other problems with the implementation of capital punishment in this country. We should take advantage of this apparent pause in executions to consider the severe injustices within the system as a whole.”

Senator Feingold, a longtime opponent of capital punishment, is the author of S.447 - the Federal Death Penalty Abolition Act.

American Rights Association is filing a law suit against CCA Judge Sharon"We close at 5:00" Keller on behalf of the wife of Michael Richard, the last person executed in the US since the Supreme Court agreed to hear two Kentucky cases challenging the method of lethal injection.

She is being sued to get the court rules changed so they can accept appeals after 5:00. She is being sued for monetary damages and she is being sued for violating the civil rights of Michael Richard.

This will be an historic lawsuit and Atty Kallinen would like members of the anti-death penalty community to join him. He was one of the endorsers of the 8th Annual March to Stop Executions. Here is the press release:

November 7, 2007, the American Rights Association will hold a press conference announcing the filing of a federal lawsuit in Houston, Texas, on behalf of the wife of Michael Richard against disgraced Judge Sharon Keller who caused the death of inmate Michael Richard, September 25, 2007, when she stopped the Texas Court of Criminal Appeals from hearing what would have been a 100% successful appeal to stay Mr. Richard's execution.

Judge Keller violated her solemn oath as a judge and attorney when sheUnconstitutionally, without any authority, prevented the now deceased Michael Richard from having his case reviewed by a court as was his right under the law by ordering the court closed. Other judges were diligently waiting for the appeal which never came. Every execution date since Michael Richard's has been stayed because the Supreme Court of the United States has decided to hear a Kentucky case whether lethal injection executions are Cruel and Unusual Punishment under the Constitution.

When Judge Keller, without legal authority, closed the court to Richard's appeal she violated his due process rights as well as the Texas Constitution guarantee that all courts shall be open, and every person ¦shall have remedy by due course of law.

Tuesday, November 06, 2007

Texas Court of Criminal Appeals announced today that they will accept emergency appeals through email for death penalty cases. Download file here.

We will hold a protest at the Court of Criminal Appeals on November 14 starting at 4:45 pm calling for resignation of Judge Sharon Keller and also delivering more than 1200+ complaints against her to the State Commission on Judicial Conduct.

In the event that an emergency e-mail filing is necessary, you must follow the steps listed below:

1. You must first phone the Clerk's Office of the Court of Criminal Appeals between8:00 a.m. and 5:00 p.m. at (512) 463-1551, to inform the Clerk that you will be sending an emergency e-mail pleading. Pleadings sent by e-mail may not exceed 5MB.

2. You will e-mail your emergency pleading by clicking this e-mail link: CCA Emergency E-Mail and attaching the pleading. In your e-mail, you must include your name, address, telephone number, and Texas State Bar Card number. You must also e-mail the pleading to all those who must be served under TEX. R. APP. P. 6.3 or any other applicable rule.

3. You must confirm by phone that the e-mail filing was received by the Clerk of the Court of Criminal Appeals or the Clerk's designated agent. A representative of the Court will then send a reply e-mail verifying that your filing has been received by the duty judge who will then decide whether to accept delivery of the pleading on an emergency basis pursuant to TEX. R. APP. P. 9.2(a)(2).

4. You must file your pleading in standard paper format, with the required number of copies, in the Court of Criminal Appeals Clerk's office by 9:30 a.m. Central Time the next business day.

Monday, November 05, 2007

Remember, RememberThe fifth of November,The gunpowder treason and plot.I know of no reasonWhy the gunpowder treasonShould ever be forgot.

But what of the man? I know his name was Guy Fawkes and I know that in 1605 he attempted to blow up the houses of parliament, but who was he really? What was he like? We are told to remember the idea, not the man. Because a man can fail. He can be caught. He can be killed and forgotten. But four hundred years later an idea can still change the world. I've witnessed firsthand the power of ideas. I've seen people kill in the name of them; and die defending them. But you cannot touch an idea, cannot hold it or kiss it. An idea does not bleed, it cannot feel pain, and it does not love. And it is not an idea that I miss, it is a man. A man who made me remember the fifth of November. A man I will never forget.

Sunday, November 04, 2007

Thats the title of Corpus Christi Caller-Times editorial on execution of Michael Richard, calling the Court of Criminal Appeals an "antiquated government office."

Two points have emerged amidst the outrage over the refusal of Keller to keep the doors of justice open. The first is that the Court of Criminal Appeals is an antiquated government office. The attorneys for Richard were scrambling to make 10 paper copies of their appeal, each 100 pages long, which, by court rules, had to be delivered to the court clerk. No electronic filing is permitted. Now members of the Texas bar are petitioning the court to adopt more modern procedures. A court of justice that deals with life-and-death cases absolutely must accept electronic filings, as does the U.S. Supreme Court.

The second point is that the execution of Richard underscores the arbitrary nature of the application of the death penalty. Even defenders of capital punishment -- and this page has supported the death penalty for decades -- have a hard time explaining why one defendant with incompetent legal representation, in a county with different jurors, before a different judge, faced with prosecutors who get plea bargains with accomplices, should die over another defendant accused of an equally cruel crime gets a better luck of the draw. If Keller had kept the doors open, Richard would have had a chance at a stay of execution. But she shut the doors and Richard was executed. This is not justice; it's a roulette wheel.

In the nation's capital of capital punishment, death will take a holiday.

In an overdue decision, Harris County Assistant District Attorney Roe Wilson confirmed that her office will suspend requests for execution dates for death penalty convicts until the U.S. Supreme Court hears a Kentucky case challenging the constitutionality of lethal injection. Wilson asked a judge to suspend a February date for the execution of convicted murderer and rapist Derrick Sonnier.

At present 122 prisoners from Harris County are on death row. Texas executes more prisoners than any other state, and since lethal injection began here in 1982, about a quarter of those executed came from Harris County.

In late September the Supreme Court announced it would review the legality of lethal injection, the predominant method of execution in the United States. Later that same day, Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, refused to accept a last-minute plea for a stay from former Harris County resident and murderer Michael Richard. He was executed hours later.

Since then, Supreme Court justices have granted stays to halt executions around the country, the last coming Wednesday in the case of a Mississippi prisoner, Earl Berry, convicted of murdering a woman two decades ago. The high court has sent a clear signal that it will stop all planned lethal injections until it rules on the issue next year.

Now that the Lone Star State's punishment machine is temporarily halted, citizens should consider questions that go beyond whether lethal injection is excruciatingly painful to its recipients and violates the constitutional ban on cruel and unusual punishment:

Why is the death penalty imposed so much more frequently in this state — and Harris County in particular — than in the rest of the country? Are Texans really proud that our state is one of the leading practitioners of government-sponsored executions on the planet?

Worldwide, 133 countries have abolished the death penalty in practice, and 93 have proscribed it by law. Amnesty International notes that only six countries accounted for nearly 90 percent of the executions last year: China, Iraq, Iran, Pakistan, Sudan and the United States. Is this the company we wish to keep when it comes to judicial standards?

Given the high volume of death sentences sought by Harris County prosecutors, instances of tainted evidence and the demonstrated lack of highly competent attorneys representing some defendants, is the risk of executing an innocent person unacceptably high? Chronicle reporting on the execution of a San Antonio man who was convicted of a killing as a teen strongly indicates another man committed the crime.

In next year's Harris County judicial and district attorney contests, these are issues the candidates should discuss in detail and which voters should thoroughly consider.

Thursday, November 01, 2007

Murder is a horrible thing. The pain and suffering experienced by the victim and his/her family and friends are beyond description. However, is capital punishment the proper response of a civilized society to this horrible crime?

The current debate about capital punishment is whether lethal injection is "cruel and unusual punishment" and, therefore, unconstitutional. No one knows how the U.S. Supreme Court will rule on this issue. Although we are aware that several executions using lethal injection have been botched over the years, we have not had anyone return from the dead to tell us what he experienced during the execution.

When the U.S. Supreme Court ruled that capital punishment was unconstitutional in the 1970s, it was because it was being applied in an arbitrary and capricious manner. Most objective legal scholars would admit that capital punishment is still being applied in an arbritrary and capricious manner despite improvements to the death penalty system in the 1970s. In 1994, U.S. Supreme Court Justice Harry Blackmun acknowledged this fact and stated "I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. From this day forward, I no longer shall tinker with the machinery of death".

My personal experience with the death penalty is that it is "cruel and unusual punishment" from many perspectives. First, it inflicts unbelievable mental anguish on the criminal, as well as his family and friends who are innocent of the crime. I have observed this pain and anguish many times when I have visited prisoners on death row, attended execution vigils and actually witnessed executions. Some may argue that the suffering of the offender is nothing compared to what he did to his victim. However, should we as a civilized society take human life and create more victims when it is totally unnecessary? What sort of an example does this set for our children and for the rest of the world?

Secondly, the inconsistency with which the death penalty is applied in the United States is phenomenal. There are not only huge inconsistencies between states, but also within states because the attitudes, abilities and resources of the district attorneys vary significantly between counties. In some counties with unlimited financial resources such as Harris County, Texas, the district attorney will go for the death penalty at every opportunity. In rural counties, the district attorney will often choose an alternative punishment because of the high cost of trying a capital case.

Thirdly, we have plenty of evidence that the criminal justice system is a human system. Mistakes have been made and innocent people have been sent to death row. Over 120 people have been exonerated and released from death row in the United States in recent years. Several of these were in Texas. And there is evidence that innocent people have been executed. If you execute an innocent person, there is no way to correct the error. Sending an innocent person to death row is certainly "cruel and unusual punishment".

When Pope John Paul II visited St. Louis in 1999, he publicly stated that the death penalty was "cruel and unnecessary". It is cruel for the obvious reasons. It is also unnecessary since we can protect society by long-term incarceration of a dangerous criminal. Many states, including Texas, have life without parole as an optional punishment for capital murder. As a civilized society, we no longer have to take human life.

More than 300 lawyers have filed a petition with the Texas Court of Criminal Appeals, asking it to join the 21st century by allowing the electronic filings of court documents in capital murder cases. It shouldn’t be, but it is - literally - a matter of life and death that the court grant the petition.

The petition’s signers include two former justices of the Texas Supreme Court, Deborah Hankinson of Dallas and Rose Spector of San Antonio, as well as such prominent local lawyers as William Allison, Dan Bishop, Betty Blackwell, Joe Crews, J. Chrys Dougherty, Dicky Grigg, Jim Harrington, Charles Herring, Richard PeÃ±a, David Sheppard, Broadus Spivey and Bill Whitehurst.

The recent execution of a Texas inmate spurred this call for reform of the nine-member court, which is the last resort in the state’s legal system for criminal cases.

On Sept. 25, defense lawyers for a death row inmate scheduled to die that evening, Michael Richard, asked the court to stay open another 20 to 30 minutes after its usual 5 p.m. closing to accept a last-minute appeal.

This was not a case of desperate lawyers inventing a last-minute argument out of thin air in hopes of stopping an execution. Instead, that morning, the U.S. Supreme Court had accepted a case that challenges the constitutionality of executing inmates by using lethal injection, the procedure used in Texas.

A professor and expert in capital-murder law at the University of Houston, David Dow, drafted a 107-page appeal for Richard and tried to e-mail it to the Texas Defender Service in Austin, which would print the required original document and 11 copies and hand deliver them to the court. But Dow ran into a transmission problem and the document didn’t reach the Defender Service until about 4:50 p.m., Dow said.

The court’s presiding judge, Sharon Keller, was asked to keep the courthouse doors open a few minutes longer so that the appeal could be printed and delivered. But she would not, nor did she notify at least three other judges that day who continued to work after 5 p.m. and could have acted on Richards’ appeal.

The documents were ready at 5:20 p.m., but the courthouse was closed. Richard was executed that night - by lethal injection.

Had direct electronic filing been possible, the court could have received the appeal by 5 p.m. and it could have been accepted or rejected on its merits, rather than get cut off by Keller’s lethal unwillingness to bend a business hour rule.

The U.S. Supreme Court and U.S. district courts in Texas allow electronic filing. The Texas Supreme Court has electronic filing under consideration and cuts appellants slack for filing urgent documents, such as parental notification appeals when a minor seeks an abortion, a spokesman said.

The Court of Criminal Appeals ought to grant the petition by the lawyers to allow electronic filing, at least for appeals filed on behalf of someone sentenced to die. Still, this would be a question of only technical interest to lawyers, not a matter of life and death, if this court’s presiding judge had exercised some human decency instead of locking the courthouse door.

It may be impossible to remove the stain that Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, has placed on the state's judiciary. But two lawyer-driven actions might keep it from spreading.

More than 300 members of the Texas bar joined a petition last week asking Judge Keller's court to adopt modern procedures and allow e-mailed filings in death penalty cases. Of course it should.

Electronic filing in life-or-death cases might have avoided Judge Keller's disgraceful decision Sept. 25 in which she refused a condemned man's plea for a 20-minute extension beyond the court's usual 5 p.m. closing. The man, convicted killer Michael Richard, was executed minutes later, despite indications that he had a strong basis for appeal.

His attorneys needed the extra time because computer glitches prevented their making paper copies, as required. Such considerations should never stand in the way of appeal when a life is in the balance. Most states now have e-mail filing provisions, and the Supreme Court of Texas allows them in civil matters

If the Court of Criminal Appeals hesitates, state lawmakers could force the issue in their 2009 session by inserting an imperative in the Code of Criminal Procedures. It would be a disappointment if things came to that.

Separately, lawyers across the state are seeking to have Judge Keller disciplined as a result of her decision to bar the courthouse door. One of the complaints filed with the State Commission on Judicial Conduct accurately states that she is a "source of scandal to the citizens of the state." It might add that she makes the nation's leading death penalty state look overeager to carry out its grim business.

Her decision is particularly hard to stomach because other judges who were working late Sept. 25 said they would have reviewed the post-deadline appeal.

Judge Keller's judgment is morally offensive. Texans deserve to know whether it also offended legal or judicial standards that seek to keep the court system open and fair.

Robert Ratcliffe of Houston Chronicle is reporting that Texas Attorney General Greg Abbott's aides "aggressively" pressed for Richard's recent execution even though they knew Sharon Keller closed the clerk's office promptly at 5 p.m. According to David Dow, Abbott did have the authority to halt the execution knowing an appeal was going to be filed with the court of criminal appeals once the clerk's office reopened.

Richard's lawyer, David Dow of Houston, said a lawyer on his staff told Abbott's office about the court of criminal appeal's actions at about 6 p.m., when Richard's death warrant took effect.

Dow said the assistant attorney general then gave Richard's lawyers six minutes to file an appeal with the U.S. Supreme Court — or else Richard would be executed.

...Former Gov. Mark White, who also once was the state's attorney general, and former Attorney General Jim Mattox have criticized Abbott for not halting the execution after Keller closed the clerk's office. Mattox said Abbott might lack legal authority for the action but the prison system would not act without his approval.

Abbott responded this week by saying, "It's up to the courts to make that determination. I don't have the legal authority to stop an execution. Only the governor and only the courts have that authority and we have to rely upon the courts to exercise that authority."

White said Abbott should have stopped the execution himself or asked Gov. Rick Perry to institute a 30-day stay. White said Keller also should have allowed Richard to file an appeal.

White said that as governor he always made sure he could stop an execution right up to the last minute.

"When there was an execution pending, I had an open line to the execution chamber and the attorney general was there so Texas would never look like we were ghoulish, uncaring," White said.

An 'egregious' breach

The governor can issue a single 30-day stay of execution on his own authority, White said.

White said even if the state ultimately executed Richard, he had a right to have his appeals heard because that creates a fundamental citizen trust in the court system.

"That court of criminal appeals, that attorney general and that governor failed to halt one of the most egregious breaches of equity in the courts that I've ever known," White said.

Strickland said Abbott's aides did everything appropriately in the Richard execution.

Strickland said Morgan contacted Dow at about 6 p.m. to say the death warrant was taking effect. Morgan wanted to know if there were going to be any additional appeals and learned then about the Supreme Court filing.

Strickland noted that Dow's appeal to the Supreme Court pointed out that Richard's request for a stay was based on the court taking up the Kentucky issue. He said the Supreme Court had enough information to stay the execution if it wanted.

"It wasn't until all courts answered these claims that the punishment was carried out," Strickland said.

Dow said the Supreme Court could have halted the execution, but he said there is no way to know whether Richard was turned down on the merits or because the Court of Criminal Appeals had not ruled on the motion first.

Dow said Abbott did have the authority to halt the execution knowing an appeal was going to be filed with the court of criminal appeals once the clerk's office reopened.

During Presiding Judge Sharon Keller's tenure, the Texas Court of Criminal Appeals has been derided for seeing no harm when lawyers commit obvious errors. In its zeal to uphold convictions come what may, the court has been scolded by the U.S. Supreme Court for not following precedent.

But for sheer myopia, it's hard to top Keller's refusal to keep the court open long enough to accept an emergency appeal from a Death Row inmate about to be executed.

Even Keller's fellow judges were dumbfounded by her rigidity.

There's no question that rules exist for a reason. And justice does demand some finality.

The last-minute scramble was set in motion by the U.S. Supreme Court's announcement earlier in the day that it would use a Kentucky case to decide whether the three-drug execution cocktail used by 36 states, including Texas, amounts to unconstitutional cruel and unusual punishment.

Richards' attorneys pulled together a petition arguing why the court's action warranted a delay of his execution, set for 6 p.m. that day. Computer problems delayed printing of the materials, so the attorneys asked the appeals court to let them file 20 minutes after the regular 5 p.m. closing time. Keller refused.

She did it without consulting Judge Cheryl Johnson, who was assigned Richards' case and who told the Austin American-Statesman that she would have accepted a last-minute filing, given that it was a death penalty case.

Keller did it without consulting Judge Paul Womack, who told the Houston Chronicle that he stayed at the courthouse until 7 p.m. anticipating a last-minute filing, given the Supreme Court's action and the importance of the issue.

She did it even though courts often allow after-hours petitions under atypical circumstances. The Texas Supreme Court, which handles civil appeals, has stayed open for urgent filings in parental notification cases, a spokesman said.

Richard's lawyers couldn't get a stay of execution from the U.S. Supreme Court, probably because they hadn't followed proper procedure by getting a Court of Criminal Appeals ruling first. So he was executed -- the only inmate whose death sentence has been carried out since the justices said they would examine the lethal injection scheme.

Four other Texas inmates have since had their executions postponed until the Supreme Court rules.

In the meantime, the Texas Commission on Judicial Conduct will have to decide whether there's merit to three formal complaints in which lawyers say Keller undermined public confidence in the judiciary.

From her few public comments, Keller doesn't appear to be soul-searching about her actions. But Texans can do it for her: Courts, she should be reminded, do justice by ruling fairly on vital issues that come to their door -- not by pretending there's no one there.